In Depth

The Indiana Court of Appeals ruled partly in favor of a couple seeking to place a fence along their property line shared
with a condominium complex, which would affect the use of a sidewalk by the condo homeowners.

When the Beemsterboers attempted to develop their property in a manner that allegedly infringed on the easements originally
granted to the association, the homeowners association sought to enjoin the improvements. The work included modifying
a deck and building a fence around a sidewalk that was on the Beemsterboers’ property, but used by the condo residents.
The trial court granted the requested relief.

The COA concluded that one of the agreements at issue has terminated and the improvements can be made in a manner that don’t
infringe upon the association’s continuing easements. The Water and Walkway Easement was terminated by its own express
terms when the residence on the Beemsterboer property of the previous owner burnt down and the water supply to that property
failed.

The judges also found that paragraph 4 of the judgment wasn’t an error. The trial court permanently enjoined the Beemsterboers
“from in any fashion interfering with the (association’s) deck … even though the actual location of the
deck encroachment may vary slightly from the description contained in the (encroachment agreement).”

“We read the trial court’s order as restricting the Beemsterboers from interfering with the deck based on the
fact that its current and historical encroachment is somewhat greater than that described in the Encroachment Agreement. The
trial court’s order does not affect the terms of the Encroachment Agreement,” wrote Judge Terry Crone.

They judges also affirmed a portion of the judgment pertaining to the septic easement.

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